¶53 (dissenting) — “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization.”18
¶54 The State charged Oliver Wright and Dennis Bryant with second degree murder committed either as an intentional murder or a felony murder. Each man was tried, “r[a]n the gantlet”19 for second degree murder, and fully defended against both alternative means of committing the crime.20 At the close of evidence, the State tactically de*811cided to instruct the jury only on the felony murder alternative. Thus, the State fully realized its “one, and only one, full and fair opportunity to convict the defendant [s]” for second degree murder.21 That the State chose to instruct the jury on only one of the two charged alternate means is of no import since defendants were placed in jeopardy for each alternative means and jeopardy terminated on the intentional means when the jury was dismissed without a verdict on that charge.
¶55 However, the majority now allows the State to retry the defendants a second time for second degree murder, this time, as last, on the intentional means alternative. But defendants already ran the gauntlet on that exact alternative. Retrial would subvert the double jeopardy clause in the clearest way. Double jeopardy bars a second prosecution for an alternative means previously charged and tried, yet not submitted to the jury at the election of the prosecution, where the jury was dismissed without the defendants’ consent and no mistrial was declared. To hold otherwise allows the State to keep these alternative means “ ‘in a safe for a rainy day’ ”22 to repeatedly retry a defendant until a conviction is obtained that sticks on appeal.
¶56 It is true, as the majority states at 792, that retrial is usually not barred when a verdict is reversed for reasons other than insufficiency of evidence. And this verdict was reversed because felony murder predicated on assault is simply not a crime. But there can be no retrial on an alternative that was previously charged and tried, absent a mistrial. See State v. Franco, 96 Wn.2d 816, 823, 639 P.2d 1320 (1982); see also Terry v. Potter, 111 F.3d 454 (6th Cir. 1997). Here only one means was submitted to the jury, so the question becomes: can the State retry the defendants on a previously uninstructed means? I think not.
¶57 Washington’s Declaration of Rights demands, “[n]o person shall ... be twice put in jeopardy for the same *812offense.” Const, art. I, § 9. The Fifth Amendment to the United States Constitution requires, “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” Washington’s double jeopardy clause “is given the same interpretation the Supreme Court gives to the Fifth Amendment.” State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). By their texts, these double jeopardy clauses prohibit retrying a defendant for the same crime. Here the crime at issue is second degree murder by means of intent. However, the defendants were already tried for that, notwithstanding that they were also tried for felony second degree murder by means of felony assault. This blanket ban on retrial is subject to only a few well-defined exceptions, including where the trial court declares a mistrial for “manifest necessity.”23
¶58 Retrial is barred where jeopardy has attached and terminated. State v. Corrado, 81 Wn. App. 640, 645, 915 P.2d 1121 (1996). Jeopardy attaches to charges pending when the jury is “empaneled and sworn.” Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978). As such, jeopardy attached to the defendants’ second degree murder charges by these alternative means when the jury was impaneled. The only remaining question here is whether jeopardy terminated for second degree murder by intentional means because that is the charge for which the State seeks a retrial.
¶59 Dismissal of the jury without the consent of the defendant terminates jeopardy just as surely as an acquittal, absent that “manifest necessity” where the trial court properly declares a mistrial. Green v. United States, 355 U.S. 184, 191, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). Here, as the defendants correctly argue, jeopardy terminated on the alternative means of committing the crime charged, including intentional murder, when the jury was dismissed with*813out the defendants’ consent.24 That defendants were also charged with the alternative means of felony murder by assault is irrelevant. We have held, as the majority states, felony murder by assault was not a crime at the time the conduct occurred. Majority at 793-94 (quoting In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004)); see also In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002).25
¶60 In Green, the United States Supreme Court held “under established principles of former jeopardy,” jeopardy for an offense comes “to an end when the jury [i]s discharged” and no mistrial is declared. Green, 355 U.S. at 191 26 This is true even where there is no “verdict of guilt or *814innocence . . . returned.” Id. at 188. Here a verdict was not returned on the intentional means because the State did not seek or require it. Nevertheless, the defendants were charged with it, tried for it, and did not consent to jury dismissal. The State had a full and fair opportunity to obtain a conviction on any charged alternative means but demurred at the last moment. Notwithstanding this last-minute change in strategy, jeopardy attached to the alternative means.
¶61 The United States Supreme Court has consistently held jeopardy terminates on a charge where the jury is discharged without the defendant’s consent prior to returning a verdict, absent a mistrial. Downum v. United States, 372 U.S. 734, 736, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). And we have held the same, i.e., jeopardy terminates “when the court dismisses the jury without the defendant’s consent.” State v. Ervin, 158 Wn.2d 746, 753, 147 P.3d 567 (2006) (citing Green, 355 U.S. at 188). These well-reasoned holdings are dispositive of the issue presented here and should end our analysis. However, the majority goes beyond this simple, clear application of well-established principles into a fog of confusion. Under the majority’s analysis, jeopardy continues on second degree murder as a whole, and not on each alternative means of committing the crime. Even assuming this is true, jeopardy does not continue on any alternative means which was charged and tried.
¶62 In Terry, the Sixth Circuit agreed jeopardy does not continue on alternative means that were charged and tried. 111 F.3d 454. There, the defendant was charged with wanton murder and intentional murder, “two possible ways to commit ‘murder.’ ” Id. at 455. Terry was found guilty of wanton murder, but the jury returned no verdict on the remaining charges, including intentional murder. Id. The Sixth Circuit correctly analyzed each charge as a separate offense for jeopardy purposes and held jeopardy terminated for intentional murder even though “jeopardy on the wanton murder charge may have continued after the *815trial and successful appeal.” Id. at 458.27 Likewise, jeopardy should not continue here on the intentional murder alternative simply because jeopardy would continue on the felony murder alternative.
¶63 The majority justifies the State’s actions by alternately claiming the defendants benefited from the State’s choosing to abandon the intentional murder alternative, and that the defendants impliedly consented to the dismissal of the jury without considering the charge.28
¶64 The majority opines the defendants benefited when the jury did not deliberate on the intentional murder charge, following the men’s trial for intentional murder. But whether a defendant benefited or was harmed by the prior jeopardy is immaterial to double jeopardy analysis. Where an individual was placed in jeopardy for an offense, he may not be placed in jeopardy again. See U.S. Const. amend. V; Const, art. I, § 9. This is true even if the prior jeopardy could somehow be seen as beneficial. “What the defendants complain of, in essence,”29 is not the omission of a jury instruction, as suggested by the majority. Instead they complain of the State’s attempt to retry them for an offense for which they were previously tried.
¶65 The majority then uses mistrial jurisprudence to support its holding that double jeopardy does not bar retrial on intentional murder. Majority at 805. But as previously stated, there was no mistrial declared here, and so the well-established rules governing mistrials are simply inapplicable.
¶66 Moreover, the majority asserts retrial is permissible unless the defendant shows the prosecution was “motivated by a concern it could not prove its case.” Majority at 805. *816However, the double jeopardy clause protects a “defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949) (emphasis added). The majority incorrectly allows a second jury to retry the defendants, contravening the fundamental purpose of the double jeopardy clause.
¶67 Apparently the defendants did not express their appreciation for this right forcefully enough for the majority because the defendants did not take exception to the trial court’s jury instructions. Majority at 790, 803-04 & n.13 (distinguishing Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988), in part because “the defendant in that case proposed the appropriate jury instructions and objected when the court refused to give them”). However, defendant Wright proposed a jury instruction on intentional murder that was not included in the instructions to the jury. In either event, the double jeopardy clause is there to prevent successive trials, not to tell the trial court how the jury is to be instructed. Jeopardy attached to this charge long before the jury was instructed and without regard to how the jury was instructed.
¶68 Furthermore, the defendant “hardly can be faulted for not having done the prosecutor’s job.” Saylor, 845 F.2d at 1407. And there was nothing objectionable about the instruction given. Neither the court nor the prosecutor had any legal duty to instruct the jury on the intentional alternate means after the prosecution abandoned it, apparently as a trial tactic. Why should the defendants object to the prosecution’s narrowing the basis to find criminal liability? What does this have to do with double jeopardy once jeopardy has attached?
¶69 In United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971), the trial court dismissed a seated jury without objection by the defendant before the jury returned a verdict. The Supreme Court held double jeopardy barred a second trial in part because “the judge, act[ed] without the defendant’s consent, [and] abort [ed] the *817proceeding, [and] the defendant has been deprived of his ‘valued right to have his trial completed by a particular tribunal.’ ” Jorn, 400 U.S. at 484 (quoting Wade, 336 U.S. at 689). The Supreme Court in Jorn upheld the defendant’s double jeopardy challenge, implicitly rejecting the majority’s claim that consent to dismissal is implied by the defendants’ failure to object.
¶70 To illustrate this point, let us suppose a criminal statute sets forth six alternative means to violate it. Now let us suppose the State charges a defendant with violating the statute in question by every alternative means, trying the defendant for the violation with strong evidence, but only instructing the jury as to one of the alternative means. As the majority recognizes here, “the State elected not to instruct on intentional murder” despite its assertion the evidence on that charge was very strong. Majority at 807. Yet, under the majority’s reasoning, the State in our hypothetical can force the defendant to stand trial for the same crime up to five additional times should the first conviction be reversed on anything but insufficient evidence. This type of “successive prosecution” is squarely within the prohibition of the double jeopardy clause if anything is.
¶71 Finally, the majority describes the dissent’s principal concern as the possibility of prosecutorial misconduct. Id. However, the principal concern in this dissent is not with the prosecutor, but instead with the defendants, and the threat and anxiety they face due to the possibility of unconstitutional retrials. The United States Supreme Court eloquently described this concern:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
*818Green, 355 U.S. at 187-88. The double jeopardy clause is primarily concerned with the risk, expense, and anxiety a defendant faces upon retrial for a crime for which he has already been charged and tried.
¶72 Jeopardy for any alternative means terminates when the jury is dismissed without the consent of the defendants absent a declared mistrial, whether there was a verdict or not. Here the jury was dismissed without the consent of the defendants. Jeopardy terminated for all charged alternative means. Double jeopardy bars retrial for the same crime absent “manifest necessity.” A strategic decision by the State to instruct on only one alternative means falls well short of that.
¶73 I dissent.
Alexander, C.J., and Chambers, J., concur with Sanders, J.Bartkus v. Illinois, 359 U.S. 121, 151, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959) (Black, J., dissenting).
Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957).
Unlike Montana v. Hall, 481 U.S. 400, 107 S. Ct. 1825, 95 L. Ed. 2d 354 (1987), and Parker v. Lockhart, 797 F. Supp. 718 (E.D. Ark. 1992) referenced by the majority at 794-95, the State here did not proceed entirely under the wrong statute but specifically charged and tried defendants not only for felony second degree murder by assault but also for second degree murder by intention. The intentional murder alternative was charged and tried under the correct statutes.
Richardson v. United States, 468 U.S. 317, 330, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984).
State v. Womac, 160 Wn.2d 643, 651, 160 P.3d 40 (2007).
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824).
Moreover, contrary to the majority’s claim, we do not rely on mistrial jurisprudence (as there was no mistrial here), but instead understand jeopardy terminates when no mistrial is declared, a separate jurisprudence.
The majority repeatedly characterizes the scenario here, where defendants were tried for both intentional murder and felony murder, as equivalent to trial error. Majority at 788, 791-92. This paints the facts with too broad a brush; as aforementioned, the defendants were charged and tried also for intentional murder, a perfectly valid statutory alternative. The majority relies on State v. Daniels, 160 Wn.2d 256, 156 P.3d 905 (2007), adhered to on recons., 165 Wn.2d 627, 200 P.3d 711 (2009), to assert retrial is not barred following the vacation of defendants’ convictions under Andress. But I have come to see Daniels as wrongly decided. 165 Wn.2d at 629 (Sanders, J., dissenting). In Daniels, as here, the jury was dismissed without returning a verdict on the operative charge, without the defendant’s consent, and without the judge declaring a mistrial. Daniels’ case differed from Wright’s and Bryant’s because her jury was instructed on two charges, and if unable to agree on her guilt or innocence on the first charge, to consider the alternative. See Brazzel v. Washington, 491 F.3d 976, 984-85 (9th Cir. 2007) (considering such an “unable to agree” instruction, distinguishing from genuine deadlock, and concluding retrial on greater offense was barred by double jeopardy (relying on Green, 355 U.S. 184, for analysis)).
The majority attempts to artificially limit the import of Green’s second rationale by describing it as applying only when a jury “reached a verdict on a lesser charge.” Majority at 796. But the Supreme Court specifically stated the critical facts were whether any verdict was returned on the charge and whether the jury was dismissed. Green, 355 U.S. at 190-91 (“But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green’s consent.” (emphasis added)). Contrary to the majority’s assertion, there is no need to extend Green; the operative facts here fit squarely within the Green rationale. The majority’s analysis artificially limits Green by refusing to recognize the critical facts underpinning its second rationale, not by its failure to extend Green to different scenarios, including sentencing.
But see United States ex rel. Jackson v. Follette, 462 F.2d 1041 (2d Cir. 1972) (allowing retrial on alternate means of committing a crime where the defendant defended against both means).
The majority’s apologia justifying the State’s action can only lead one to believe it comprehends the wrongfulness of the State’s action in this case.
Majority at 804.